ASHOKSINH JAYENDRASINH versus STATE OF GUJARAT on 7 May 2019

[2019] 7 S.C.R. 309

ASHOKSINH JAYENDRASINH

v.

STATE OF GUJARAT

(Criminal Appeal No. 1123 of 2010)

MAY 7, 2019

[R. BANUMATHI AND S. ABDUL NAZEER, JJ.]

Penal Code, 1860 – s. 302 r/w. s. 34, s.307 r/w. s. 34 –Prosecution case was that accused persons including appellant-accused no. 1 ploughed the disputed road for which a civil suit waspending between complainant and the accused persons – Whencomplainant and his family objected accused from carrying outploughing activities, they were abused – Thereafter, complainantand his family went back to their houses – In the meantime, accusedpersons armed with guns and stick went to their houses and accusedNos. 1 & 2 fired three gun shots which hit victim-deceased (wife ofPW-5), PW-6 and PW-7 – Wife of PW-5 died on spot – FIR wasregistered – Upon consideration of the evidence of injured eye-witnesses (PWs 6 and 7), recovery of weapons and other evidenceon record, the trial court convicted appellant-accused No.1 andaccused No. 2 u/s. 302 r/w. s. 34 IPC, u/s. 307 r/w. 34 IPC, u/s.25(c) of the Arms Act and u/s. 3(1) (x) of SC and ST (Prevention ofAtrocities) Act, 1989 – High Court acquitted accused No. 2, however,affirmed the conviction of the appellant-accused No.1 u/s. 302, 307r/w. s. 34 IPC and u/s. 25 (c) of the Arms Act – On appeal, held: Theoccurrence was in the agricultural field of the complainant where itwas dark – In absence of any evidence as to the light aspect, thepossibility of identifying the accused in the darkness of theagricultural field becomes doubtful – There were contradictions inthe case of prosecution as to who fired those gun shots – Further,PW-1 doctor did not state in his report that the injury was causedeither by bullet or by pellets and also did not state whether woundswere caused by rifle or by gun – The witness to the panchnama (Ex.P-79) for recovery of weapons from accused Nos. 1 & 2 had turnedhostile and there was no independent source to corroborate therecovery of the weapons – Therefore, the guilt of the accused wasnot proved beyond reasonable doubt – Impugned Judgment of the

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[2019] 7 S.C.R.

AHigh Court affirming the conviction of the appellant-accused No.1 set aside.

Allowing the appeal, the Court

HELD : 1. The occurrence was of 23.11.1997 at 09:00 PMin the agricultural field of complainant (PW-3), where it was dark.BThe panchnama of the scene of occurrence (Ex.P-73) shows noindication of the electric light either in the animal shed situatedbehind the house of complainant or that there is any electric poleanywhere in the vicinity or that there is a light on the well which is supplying water. Case of prosecution is that appellant and sixCother co-accused surrounded the complainant party and therewere three gunshots fired. The injured witness (PW-6) in his cross-examination has admitted that he had not stated anything aboutthe burning light either in the animal shed or anywhere in thevicinity. In the absence of any evidence as to the light aspect, thepossibility of identifying the accused in the darkness of theDagricultural field of the complainant, particularly at 09:00 PMbecomes doubtful. It is also to be pointed out that there is noevidence as to whether there was moonlight on 23.11.1997 andcomplainant has also not stated that he has identified the appellantor other co-accused with the help of moonlight. In the absence ofEevidence as to the availability of sufficient light, the identificationof the accused and the overt act attributed to the appellantbecomes doubtful. [Para 10] [315-E-H]

2. PW-1-doctor opined that cause of death was due torapturing of trachea, oesophagus and difficulty in breathing. InFpost-mortem certificate-Ex.P-52, PW-1 has not stated that theinjury was caused either by bullet or by pellets. PW-1 has alsoadmitted that he has not seen the recovered articles i.e. therecovered rifle and the double barrel gun. In the absence ofdefinite evidence as to which of the fire arm caused the fatal injury,the same cannot be attributed to the appellant from whom rifleGwas recovered. [Para 12] [316-F-G]

3. Case of prosecution is that as per disclosure statementof accused Nos.1 and 2, a rifle was recovered from the house ofaccused No.1 which has a single barrel. Similarly, as pointed outearlier in post-mortem certificate (Ex.P-52), a double barrel gunHwas also recovered from the house of accused No.2. It is merely stated that there were puncture wounds. The post mortemcertificate does not state as to whether those gun wounds werecaused by rifle or by gun. In the absence of any definite indicationas to whether those fatal wounds were caused either by rifle orby double barrel gun, the courts ought not to have held appellant-accused No.1 responsible for the fatal fire arm wounds on thebody of deceased. [Para 13] [316-G-H; 317-A-B]

4. The police officer-Investigating Officer has spoken aboutthe recovery of the fire arms. There is no rule of law that theevidence of police officer has to be discarded or that it suffersfrom some inherent infirmity. But in the facts and circumstancesof the present case where two fire arms viz. rifle and gun are saidto have been used by accused Nos.1 and 2 respectively, prudencerequires corroboration of recovery of the weapons fromindependent source. When panch witnesses in Ex.P-79 haveturned hostile, the court has to seek corroboration from othersources regarding the recovery of weapons. [Para 14] [317-C-D]

5. There was darkness at the time and the place ofoccurrence making it difficult for the witnesses to identify theassailants. The evidence of eye-witnesses are contradictory toeach other as to the firing of the fatal blow. The guilt of the accusedhas not been proved beyond reasonable doubt and the benefithas to be given to the accused. [Para 16] [317-H; 318-A]

Mahesh Dattatray Thirthkar v. State of Maharashtra(2009) 11 SCC 141 : [2009] 3 SCR 1122 – referred to.

Case Law Reference

[2009] 3 SCR 1122referred to

Para 17

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1123 of 2010.

From the Judgment and Order dated 05.03.2009 of the High Courtof Gujarat at Ahmedabad in Criminal Appeal No. 10 of 2001.

Anuj Bhandari, Ms. Disha Bhandari, Abhinav Srivastava, Ms.Ruchi Kohli, Advs. for the Appellant.

Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Vishakha, Advs. forthe Respondent.

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312SUPREME COURT REPORTS

[2019] 7 S.C.R.

AThe Judgment of the Court was delivered byR. BANUMATHI, J.

1. This appeal arises out of the judgment dated 05.03.2009 passedby the High Court of Gujarat at Ahmedabad in Criminal Appeal No.10of 2001 in and by which the High Court affirmed the conviction ofBappellant-accused No.1 under Section 302 IPC read with Section 34IPC and the sentence of life imprisonment imposed upon him. The HighCourt also affirmed the conviction of the appellant under Section 307IPC read with Section 34 IPC and under Section 25(c) of the Arms Actand the sentence of imprisonment imposed upon him. The High CourtCacquitted the appellant for the offence under Section 3(1)(x) of theScheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989.

2. Brief facts which led to filing of this appeal are:-

2. Brief facts which led to filing of this appeal are:- On 23.11.1997 at about 09.00 PM, accused Nos.1 to 5 along withDtheir servant (accused No.6) and another one accused gatheredthemselves and started ploughing the disputed road with a tractor forwhich a civil suit in Regular Suit No.131 of 1997 filed by complainant-Somabhai Rupabhai (PW-3) against appellant-accused No.1 and accusedNo.3 was already pending before the Court of Civil Judge, Modasa.EAccording to the prosecution, the said road was used by the complainantand his family members for going to and fro. On the date of incident i.e.on 23.11.1997 at about 09:00 PM, when accused persons were ploughingthe road, the complainant and his family members intervened and preventedthem from carrying out the ploughing activities on which accused startedabusing the complainant and his family members with caste remarks.FDue to fear, complainant and his family members went back to theirhouses which were near to the place of incident. In the meantime,appellant/accused No.1-Ashoksinh Jayendrasinh and accused No.2-Kalusinh @ Harpalsinh armed with guns, accused No.4-Balbadhra Singharmed with stick and accused No.3-Gayendra Singh who was drivingGthe tractor came there. Thereafter, accused Nos.1 and 2 fired three gunshots which hit deceased Somiben, wife of Hirabhai (PW-5), Ramanbhai(PW-6) and Nandaben (PW-7) due to which Somiben died on the spotand PWs 6 and 7 got injured. Thereafter, all the accused ran away fromthe place of incident. On 24.11.1997, on the basis of the complaintlodged by complainant (PW-3), FIR was registered against all the accusedH

under Sections 302, 307, 120B IPC read with Section 34 IPC, 143, 147,148, 149, 506(II), 323 and 504 IPC, under Section 25(c) of the Arms Actand under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989.

3. Upon completion of investigation, charge sheet was filed againstthe appellant and other co-accused under Sections 302, 307, 120B IPCread with Section 34 IPC, 143, 147, 148, 149, 506(II), 323 and 504 IPC,under Section 25(c) of the Arms Act and under Section 3(1)(x) of theScheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989.

4. To bring home the guilt of the accused, the trial court examinedfour eye-witnesses viz. complainant-Somabhai Rupabhai (PW-3), HirabhaiSomabhai (PW-5) and injured eye-witnesses-Ramanbhai MulabhaiRangjibhai (PW-6) and Nandaben Hirabhai (PW-7), Dr. Rohit Kumar(PW-1) who conducted the post-mortem on the dead body of deceasedSomiben, Dr. Deshmukh Hiralal (PW-4) who examined the injured eye-witnesses and other witnesses. Upon consideration of the evidence ofinjured eye-witnesses (PWs 6 and 7), recovery of weapons and otherevidence on record, the trial court vide its judgment dated 15.11.2000convicted the appellant-accused No.1 and accused No.2 under Section302 IPC read with Section 34 IPC and sentenced them to undergo lifeimprisonment along with fine of Rs.5,000/- each. They were also convictedunder Section 307 IPC read with Section 34 IPC and were sentenced toundergo rigorous imprisonment for seven years along with fine ofRs.5,000/- each. They were also convicted under Section 25(c) of theArms Act and sentenced to undergo rigorous imprisonment for threeyears along with fine of Rs.500/- each and under Section 3(1)(x) of theScheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 and sentenced to undergo rigorous imprisonment for six monthsalong with fine of Rs.500/- each. The trial court acquitted accused No.1and 2 under Sections 147, 148, 149, 323, 504 and 506(II) IPC. The trialcourt also acquitted accused No.3 to 7 from all the charges. Beingaggrieved, appellant-accused No.1 and accused No.2-Kalusinh filedCriminal Appeal No.10 of 2001 before the High Court. Challenging theacquittal of co-accused-No.3 to 7, respondent-State has also filed CriminalAppeal No.127 of 2001 before the High Court. By the common judgmentdated 05.03.2009, the High Court affirmed the conviction of appellant-accused No.1 under Section 302 and Section 307 IPC read with Section A

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A34 IPC and under Section 25(c) of the Arms Act. The High Courtacquitted the appellant under Section 3(1)(x) of the Scheduled Castesand Scheduled Tribes (Prevention of Atrocities) Act, 1989 and alsoacquitted accused No.2-Kalusinh from all the charges by giving him thebenefit of doubt. By the same judgment, the appeal preferred by therespondent-State was dismissed by the High Court.B

5. Being aggrieved by the dismissal of his appeal, appellant-accusedNo.1 has preferred this appeal. Challenging the acquittal of accusedNo.2-Kalusinh, respondent-State has filed Criminal Appeal No.1125 of2010 which we have dismissed vide order dated 02.05.2019.

C6. Mr. Anuj Bhandari, learned counsel appearing on behalf of theappellant has submitted that the occurrence was of 23.11.1997 at 09:00PM in the agricultural field of complainant-Somabhai Rupabhai (PW-3)and there is no evidence as to the electric light burning at the time ofoccurrence so as to enable the complainant and the witnesses to identifythe assailants and in the absence of any vital evidence regarding theDlight, identity of the assailants by the witnesses ought not to have beenrelied upon. It was further submitted that two panch witnesses viz.Mukeshkumar Pranlal Sheth (PW-12) and Ramanbhai Hirabhai Panchal(PW-17) have not supported the panchnama (Ex.P-89) and in theabsence of proof of recovery of weapons from the appellant, the fatalEinjuries sustained by deceased Somiben cannot be attributed to theappellant. It was submitted that in the post-mortem certificate (Ex.P-52), Dr. Rohit Kumar (PW-1) has stated that there were puncture woundsbut it is not clear as to whether those wounds were caused by rifle or bygun. It was urged that in the absence of any definite evidence as towhich weapon-whether rifle or gun had caused the injuries, the courtFought not to have convicted the appellant-accused No.1 under Sections302 IPC read with Section 34 IPC and Section 307 IPC read with Section34 IPC and under Section 25(c) of the Arms Act and prayed for givingbenefit of doubt to the appellant-accused No.1.

7. Ms. Jesal Wahi, learned counsel appearing on behalf of theGrespondent-State has taken us through the judgment of the trial courtand the impugned judgment and submitted that the evidence of injuredeye-witnesses (PWs 6 and 7) and the evidence of complainant-SomabhaiRupabhai (PW-3) and other eye-witness Hirabhai (PW-5) are cogentand consistent and the courts below rightly convicted the appellant-Haccused No.1 and the concurrent findings warrant no interference.

8. We have carefully considered the rival contentions and perusedthe impugned judgment and the judgment of the trial court and othermaterials placed on record.

9. As per the prosecution case, the motive for the occurrence isregarding the dispute over the enjoinment of the road in Survey No.95 ofDhemda Village belonging to accused No.1. Complainant-SomabhaiRupabhai (PW-3) filed a civil suit in Regular Suit No.131 of 1997 for theland measuring four acres and twenty-two guntas in the Court of CivilJudge, Modasa against accused Nos.1 and 3. In the said suit, by theorder dated 16.10.1998 (Ex.P5), the court has ordered “status quo”.Against the said order of status quo, accused has filed appeal in CFONo.67 of 1998 and the copy of said appeal has been marked as Ex.P-126. Regarding the enjoyment of the land bearing Survey No.95, therewas enmity between the parties and thus the prosecution has proved themotive. Proof of motive was taken as one of the important aspects bythe trial court as well as by the High Court. Though motive is a relevantaspect, it is to be kept in view that motive is a double edged weapon.Proof of motive merely adds to the value of evidence of the eye-witnesses.

10. The occurrence was of 23.11.1997 at 09:00 PM in theagricultural field of complainant-Somabhai Rupabhai (PW-3), where itwas dark. The panchnama of the scene of occurrence (Ex.P-73) showsno indication of the electric light either in the animal shed situated behindthe house of complainant or that there is any electric pole anywhere inthe vicinity or that there is a light on the well which is supplying water.Case of prosecution is that appellant and six other co-accused surroundedthe complainant party and there were three gunshots fired. The injuredwitness (PW-6) in his cross-examination has admitted that he had notstated anything about the burning light either in the animal shed oranywhere in the vicinity. In the absence of any evidence as to the lightaspect, the possibility of identifying the accused in the darkness of theagricultural field of the complainant, particularly at 09:00 PM becomesdoubtful. It is also to be pointed out that there is no evidence as to whetherthere was moonlight on 23.11.1997 and complainant has also not statedthat he has identified the appellant or other co-accused with the help ofmoonlight. In the absence of evidence as to the availability of sufficientlight, the identification of the accused and the overt act attributed to theappellant becomes doubtful.

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A11. In the complaint filed by complainant-Somabhai Rupabhai(PW-3), it has been stated that appellant/accused No.1-AshoksinhJayendrasinh and accused No.2-Kalusinh fired three gun shots fromtheir guns. Whereas, in the statement before the court, PW-3 has statedthat “Kalu Sinh fired three shots which injured Nandaben andRamanbhai”. As per the case of complainant as stated in the court,Btotal three gun shots were fired and all three were fired by accusedNo.2-Kalusinh. As rightly submitted by the learned counsel for theappellant, there are contradictions in the case of the prosecution as towho fired those gun shots and the benefit of doubt is to be given to theappellant.C

12. Dr. Rohit Kumar (PW-1) has conducted the post-mortem onthe dead body of deceased Somiben and as per post-mortem certificate(Ex.P-52), PW-1 noted the following injuries:-

(i) One entry wound on left side of chest above the nipple of0.5 cm diameter.

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(ii) Puncture wound, round, on left side of neck measuring0.5 cm.

(iii) Injury No. (i) passed into the back forming Exit wound atthe side of middle of spine of right scapula measuring 1 cmin diameter. At the back at the level of 1[st] Exit wound 5[th] ribEwas broken. At the level of 2[nd] Exit wound 7[th] rib was brokenat the back side of left chest.

PW-1 opined that cause of death was due to rapturing oftrachea, oesophagus and difficulty in breathing. In post-mortem certificate-Ex.P-52, PW-1 has not stated that the injury was caused either by bulletFor by pellets. PW-1 has also admitted that he has not seen the recoveredarticles i.e. the recovered rifle and the double barrel gun. In the absenceof definite evidence as to which of the fire arm caused the fatal injury,the same cannot be attributed to the appellant from whom rifle wasrecovered.G

13. Case of prosecution is that as per disclosure statement ofaccused Nos.1 and 2, a rifle was recovered from the house of accusedNo.1 which has a single barrel. Similarly, as pointed out earlier in post-mortem certificate (Ex.P-52), a double barrel gun was also recoveredfrom the house of accused No.2. It is merely stated that there wereHpuncture wounds. The post mortem certificate does not state as to whether those gun wounds were caused by rifle or by gun. In the absenceof any definite indication as to whether those fatal wounds were causedeither by rifle or by double barrel gun, the courts ought not to have heldappellant-accused No.1 responsible for the fatal fire arm wounds on thebody of deceased Somiben.

14. Yet another circumstance raising doubts about the prosecutioncase is to be pointed out. Mukeshkumar Pranlal Sheth (PW-12) andMadhusudanbhai Arvindbhai Pandya (PW-13) are the witnesses to thepanchnama (Ex.P-79) for recovery of weapons from accused Nos.1and 2 and both of them have not supported the prosecution case. Thepolice officer-Investigating Officer has spoken about the recovery ofthe fire arms. There is no rule of law that the evidence of police officerhas to be discarded or that it suffers from some inherent infirmity. But inthe facts and circumstances of the present case where two fire armsviz. rifle and gun are said to have been used by accused Nos.1 and 2respectively, prudence requires corroboration of recovery of the weaponsfrom independent source. When panch witnesses in Ex.P-79 have turnedhostile, the court has to seek corroboration from other sources regardingthe recovery of weapons.

15. Learned counsel appearing for the appellant mainly contendedthat fired bullet was not recovered and only empty cartridges made ofbronze were recovered near the mango tree. Contention of the appellantis that since the fired bullet which caused fatal injuries to the deceasedwas not recovered, the ballistic expert cannot give definite opinion as towhich weapon was used to cause the fatal gun wounds to the deceased.Learned counsel further contended that ballistic expert has stated thathe only tested the fired bullet C2 from rifle C1 and examined only emptybullet recovered and therefore, from the evidence of ballistic expert, itcannot be said that gun shot injury was caused to the deceased onlyfrom the rifle recovered from the appellant. Non-recovery of bullet cannotbe said to be fatal to the prosecution case. Since benefit of doubt isgiven to the accused on other aspects like darkness in the place ofoccurrence and doubts as to who caused fatal injuries, we are not inclinedto consider the merits of the contention assailing the opinion of the ballisticexpert.

16. There was darkness at the time and the place of occurrencemaking it difficult for the witnesses to identify the assailants. The evidenceof eye-witnesses are contradictory to each other as to the firing of the A

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Afatal blow. The guilt of the accused has not been proved beyond reasonabledoubt and the benefit has to be given to the accused.

17. We are conscious that the Supreme Court would be slow tointerfere with the concurrent findings of the courts below. In an appealunder Article 136 of the Constitution of India, concurrent findings of factBcannot be interfered with unless shown to be perverse (vide MaheshDattatray Thirthkar v. State of Maharashtra (2009) 11 SCC 141).Where the appreciation of evidence is erroneous, the Supreme Courtwould certainly appreciate the evidence. In our considered view, theHigh Court ought to have weighed and considered the materials. Whenthe findings of the trial court and the High Court are shown to be perverseCand there is no proper appreciation of evidence qua the appellant, theSupreme Court would certainly interfere with the findings of fact recordedby the High Court and the trial court. It is to be pointed out that the HighCourt has not appreciated the oral evidence, other evidence and thepoints raised by the appellant-accused No.1. In our considered view, theDimpugned judgment affirming the conviction of the appellant-accusedNo.1 cannot be sustained and the impugned judgment is liable to be setaside.